Legal Fictions

The Bush administration’s dumbest legal arguments of the year.

This time last year, I offered up a top 10 list of the most appalling civil-liberties violations by the Bush administration in 2006. The grim truth is, not much has changed. The Bush administration continues to limit our basic freedoms, conceal its own worst behavior, and insist that it does all this in order to make us more free. In that spirit, it seemed an opportune moment to commemorate the administration’s worst legal justifications and arguments of the year. And so I humbly offer this new year’s roundup: The Bush Administration’s Top 10 Stupidest Legal Arguments of 2007.

10. The NSA’s eavesdropping was limited in scope.

Not at all. Recent revelations suggest the program was launched earlier than we’d been led to believe, scooped up more information than we were led to believe, and was not at all narrowly tailored, as we’d been led to believe. Surprised? Me neither.

9. Scooter Libby’s sentence was commuted because it was excessive.

Dick Cheney’s former chief of staff, Scooter Libby, was found guilty of perjury and obstructing justice in connection with the outing of Valerie Plame. In July, before Libby had served out a day of his prison sentence, President Bush commuted his sentence, insisting the 30-month prison sentence was “excessive.” In fact, under the federal sentencing guidelines, Libby’s sentence was perfectly appropriate and consistent with positions advocated by Bush’s own Justice Department earlier this year.

8. The vice president’s office is not a part of the executive branch.

We also learned in July that over the repeated objections of the National Archives, Vice President Dick Cheney exempted his office from Executive Order 12958, designed to safeguard classified national security information. In declining such oversight in 2004, Cheney advanced the astounding legal proposition that the Office of the Vice President is not an “entity within the executive branch” and hence is not subject to presidential executive orders. When, in January 2007, the Information Security Oversight Office asked Attorney General Alberto Gonzales to resolve the dispute, Cheney recommended the executive order be amended to abolish the Information Security Oversight Office altogether. In a new interview with Mike Isikoff at Newsweek, the director of the ISOO stated that his fight with Cheney’s office was a “contributing” factor in his decision to quit after 34 years.

7. TheGuantanamo Bay detainees enjoy more legal rights than any prisoners of war in history.

This has been one of the catchiest refrains of the war on terror, right up there with the claim that the prisoners there are well-fed and cared for. The government brief in the December Supreme Court appeal on the rights of these detainees to contest their detentions proudly proclaimed that the “detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war.” That certainly sounds plausible. But as my colleague Emily Bazelon detailed here in Slate, a vast gaggle of historians, constitutional scholars, and retired military officers vehemently dispute that characterization of the legal processes afforded the detainees. The argument that Guantanamo prisoners have greater rights than they would otherwise be afforded relies on deep distortions of both fact and law.

6. Water-boarding may not be torture.

Water-boarding is torture. It’s torture under the Geneva Conventions and has been treated as a war crime in the United States for decades. The answer to the question of its legality should be as simple as the answer to whether boiling prisoners in oil is legal. But in his confirmation hearings to become U.S. attorney general, Michael Mukasey could not bring himself to agree. He claimed not to have been “read into” the interrogation program and to be incapable of speculating about hypothetical techniques. He added that he did not want to place U.S. officials “in personal legal jeopardy” and that such remarks might “provide our enemies with a window into the limits or contours of any interrogation program.” Even Sen. Lindsey Graham, R-S.C., seems to be catching on to what it means when senior legal advisers find themselves incapable of calling water-boarding torture.

5. Everyone who has ever spoken to the president about anything is barred from congressional testimony by executive privilege.

This little gem of an argument was cooked up by the White House last July when the Senate judiciary committee sought the testimony of former White House political director Sara Taylor, as well as that of former White House counsel Harriet Miers, in connection with the firing of nine U.S. attorneys for partisan ideological reasons. Taylor was subpoenaed in June and, according to her lawyers, she wanted to testify but was barred by White House counsel Fred Fielding’s judgment that the president could compel her to assert executive privilege and forbid her testimony. As Bruce Fein argued in Slate, that dramatic over-reading of the privilege would both preclude congressional oversight of any sort and muzzle anyone who’d ever communicated with the president, regardless of their wish to talk.

4. Nine U.S. attorneys were fired by nobody, but for good reason.

Of course, the great legal story of 2007 was the unprecedented firing of nine U.S. attorneys who either declined to prosecute Democrats or were too successful in prosecuting Republicans. After months of congressional hearings, subpoenas, and investigations, the mastermind behind the plan to replace these prosecutors with “loyal Bushies” has yet to be determined. The decision is instead blamed on a “process” wherein unnamed senior department officials came to a “consensus” decision. No one is willing to name names, even though the firings were ostensibly legal, because, in the words of the president himself, these prosecutors all “serve at the pleasure of the president” and can be fired for any reason. Nevertheless, the firing of the nine U.S. attorneys—many of whom had stellar records and job reviews—remains shrouded in secrecy, although at least according to everyone who’s testified, they were all fired for good reasons (which also cannot be articulated).

3. Alberto Gonzales.

I am forced to put the former attorney general into his own category only because were I to attempt to round up his best legal whoppers of the calendar year, it would overwhelm the rest of the list. As Paul Kiel over at Talking Points Memoso aptly put it earlier this year, Gonzales was and is clearly “the lying-est attorney general in recent history.” Kiel went on to catalog Gonzales’ six most egregious legal lies of the year, but I’ll focus here on just two. First, his claim at a March press conference that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with respect to the U.S. attorney firings. This was debunked shortly thereafter when Kyle Sampson testified that Gonzales was frequently updated throughout the process. Second, his April testimony that he had not “talked to witnesses because of the fact that I haven’t wanted to interfere with this investigation and department investigations,” which was promptly contradicted by Monica Goodling’s testimony about his efforts to coordinate his version of the story with hers.

2. State secrets.

Again, it’s virtually impossible to cite the single most egregious assertion by the Bush administration of the state-secrets privilege, because there are so many to choose from. This doctrine once barred the introduction into court of specific evidence that might compromise national security, but in the hands of the Bush administration, it has ballooned into a doctrine of blanket immunity for any conduct the administration wishes to hide. The privilege was invoked in 2007 to block testimony about its torture and extraordinary rendition program, its warrantless surveillance program, and to defend the notion of telecom immunity for colluding in government eavesdropping, among other things. No longer an evidentiary rule, the state-secrets privilege has become one of the administration’s surest mechanisms for shielding its most egregious activities.

First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture “abhorrent.” But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.